A REVIEW OF BLOOD TEST REGULATION IN OHIO

In Ohio, a blood test is administered by a crime lab or the collecting health care agency. The blood must be drawn by a licensed medical professional. In cases where blood tests are administered by a crime lab, the Ohio DUI driver’s blood sample must be drawn within three hours of the perceived infraction. In addition, it must be tested in compliance with regulations drafted by the Ohio Department of Health. Because of their complexity, an attorney focusing on DUI defense exclusively should be considered.

Please consult the articles on the ODH rules on this blog. The regulations include rules for collection and handling of blood samples, testing techniques, laboratory operations, permits, and records maintenance. In cases where DUI blood tests are administered by a hospital expert testimony regarding the blood test and how the result relates to impaired driving ability.

Ohio law requires you to take a blood, breath, or urine test if you are arrested for an OVI. Ohio’s “implied consent” law says that if you are lawfully arrested by an officer who has probable cause to believe that you have been operating under the influence, then you consent to taking a chemical test of your blood, breath, or urine for the purpose of determining your blood alcohol content (BAC). The test must be taken within two hours of driving and the officer gets to choose which test you take. The question is, how strictly will the courts enforce the two-hour limit.

OHIO SUPREME COURT ADDRESSES BLOOD TEST ADMISSIBILITY

The Ohio Supreme Court clarified their position on the refrigeration of a blood sample. They address whether strict compliance is required. Answer, no! They also clarified, with great deference to the prosecution, what substantial compliance means. Spoiler alert: it is a quickly eroding standard. In State v. Baker, Slip Opinion No. 2016-Ohio-451 the Ohio Supreme Court ruled on the admissibility of a blood test samples. In this case a Trooper left the sample unrefrigerated in his patrol car for over four (4) hours. The Ohio Supreme Court opinion reversed a lower court decision. The lower court ruled because the state did not strictly comply with the refrigeration requirement, the sample could not be used against the defendant. This case arose from a 2011 OVI charge that arose from accident that killed a pedestrian.

While giving lip service to the fact that strict compliance with the refrigeration rule is preferable, the Court recognized logistical issues of gathering and submitting samples may make strict compliance unrealistic in all cases. Citing State v. Plummer, where the Court in 1986 held that the failure to refrigerate a urine sample for four hours did not render the test results inadmissible, and State v. Mayl, a 2005 decision that cited Plummer, the Court determined that the failure to refrigerate a blood sample for as many as five hours substantially complied with the refrigeration requirement, permitting the sample to be used as evidence. The failure to refrigerate the defendant’s specimen for four hours and 10 minutes substantially complied with the rule and did not make the test results inadmissible per se.

OHIO SUPREME COURT CLARIFIES BLOOD TEST ADMISSIBILITY PROCEDURE

In this case, the court clarified the procedure for admitting blood-alcohol test results into evidence as established in the Court’s 2003 State v. Burnside decision. Burnside states that to challenge a blood test result, the defendant must file a motion to suppress. After the filing of a motion to suppress it becomes the responsibility of the state to demonstrate it substantially complied with the administrative rule. If the state proves substantial compliance, the burden then shifts back to the accused to show the failure to strictly comply made the test unreliable and prejudicial.

In opposition, a dissenting opinion was written by Justice William M. O’Neill. While he acknowledge that strict compliance is not always realistic or humanly possible, he concluded the majority decision makes the substantial compliance standard too low for such serious cases. Therefore, he stated the decision allows for the rule to be ignored. This blog has long argued that the “substantial compliance standard” is a fast-eroding standard that allows the court to admit evidence if the police try their best, or demonstrate a good faith effort, effectively shifting the burden of proof from the government to the defendant.

CONTACT CHARLES M. ROWLAND (DAYTONDUI) TODAY!

If you have questions about your blood test case, please contact me at (937) 318-1384. Also, you can also hear me lecture on this topic. I will be speaking on behalf of the American Association of Premier DUI Attorneys in November. In addition to these cases, I will be giving an update on Ohio OVI law. I hope you can be there. If not, please visit the DaytonDUI blog for all things OVI. Learn about city-specific OVI courts. Due to their complexity, review the law on blood, breath and urine testing. Stay abreast of developments in the law. As a result of my focus, I hope to have the most up-to-date information. I work hard to be the best DUI in Ohio. In conclusion, I take great pride in my work.

Tomorrow is a big day for Ohio Beer Law.

The Governor signed House Bill 37, into law earlier this year. The law will lift the current 12 percent alcohol by volume (ABV) ceiling. The new law goes into effect Wednesday, August 31st. Under the new law, there’s no cap. Beers are expected to be around 30 percent ABV which is far below what you would find in whiskey.

Rep. Dan Ramos, a Lorain Democrat, has introduced several bills raising the cap, which was raised from 6 to 12 percent in 2002. Ramos pointed to Ohio’s alcohol limits as a reason Stone Brewing chose to expand in Virginia instead of Ohio. He championed this legislation and it passed by wide margins. Another champion of the bill was the Ohio Craft Brewers Association. “We’ve gone from 58 breweries in 2012 to 177 today. That’s an economic generator, that’s taxes being paid to the state of Ohio,” Mary MacDonald, Executive Director of the Ohio Craft Brewers Association, said. (quoted at 10tv.com). The immediate result will benefit the Miami Valley and the Brewery District in Columbus. Both areas have become a hotbed for beer lovers. Changing the Ohio beer law to accommodate the changes in the market makes sense. But there are critics.

Mothers Against Drunk Driving Does Not Support The Legislation

10TV, the source of this blog post also contacted Mothers Against Drunk Driving to get their response to the new law raising alcohol levels in beer. Here is their statement:

“MADD cautions drinkers of craft (high-alcohol-content) beer or other high-alcohol-content beverages that they may likely reach a level of impairment quicker than what they might be accustomed to. Never drink and drive, no matter what the alcohol content might be in the beverage you are consuming.”

If you want to stay abreast of news about alcohol laws, drunk driving, speed cameras, private prisons and other legal topics, follow @DaytonDUI on Twitter or Facebook.

OVI, DUI, OMVI, DWI, Drunk Driving – Is There Any Difference?

Spoiler Alert: They all mean the same thing: operating a vehicle under the influence of drug, alcohol or a combination of drugs and alcohol, in violation of Ohio Revised Code 4511.19.

Colloquially, the most common way to describe drunk driving is by referring to it as a DUI. The term DUI is universally understood and used by most national news organizations. DWI (driving while impaired) is also a ubiquitous term used to describe drunk driving. More info

The History of The Presumption of Innocence

The presumption of innocence, Ei incumbit probatio qui dicit, non qui negat, is the principle that one is considered innocent unless proven guilty. It dates back to the very foundations of western jurisprudence. The sixth century Digest of Justinian provides, as a general rule of evidence:”Proof lies on him who asserts, not on him who denies.” The presumption requires that the prosecution has the obligation to prove each element of the offense beyond a reasonable doubt and that the accused bears no burden of proof. More info

In State v. Bode, 144 Ohio St.3d 155, 2015-Ohio-1519, the Ohio Supreme Court decided an issue affecting juveniles and the ability of the state to enhance a DUI charge based on prior juvenile adjudications.

As a juvenile, the defendant was arrested for violating an equivalent offense 4511.19(A)(1)(a), colloquially referred to as a DUI charge. He was not represented by counsel. By 2011 Bode had been convicted of three more DUI charges. In 2011, Bode was indicted for and convicted of felony DUI charges. The cases were felonies because of Ohio enhancement statute R.C. 4511.19(G)(1)(d), which relied on his prior juvenile offense to enhance his charged to a felony. In Ohio, if you accumulate “five or more” DUI offenses within a twenty (20) year period, you may be charged with a felony of the fourth degree. Here, the government was attempting to use his juvenile offenses as one of the “five or more.”

The defense argued that because he did not waive his right to counsel at his 1992 juvenile adjudication, the state should not be allowed to use that disposition against him. In a narrow 4 to 3 decision, the Ohio Supreme Court agreed. Relying heavily upon well-recognized Due Process cases, the court did not accept the state’s argument that since he was not incarcerated in the 1992 adjudication, he should not have been afforded counsel. The opinion, in dicta, also shows continued life for the collateral attack of a prior sentence under the State v. Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533 analysis.

This case highlights the necessity of hiring an experienced and credentialed attorney who practices in the field of DUI defense. At DaytonDUI, Charles M. Rowland II has over 20 years experience helping people accused of driving under the influence. Call today!

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Charles M. Rowland II represents the accused drunk driver in Dayton, Ohio and throughout the Miami Valley. Contact the office at 937-318-1384 or our 24 hr. DUI Hotline at (937) 776-2671. "All I Do Is DUI Defense."

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“The day may come when the rest of animal creation may acquire those rights which never could have been withholden from them but by the hand of tyranny. The French have already discovered that the blackness of the skin is no reason why a human being should be abandoned without redress to the caprice of a tormentor. It may one day come to be recognized that the number of legs, the villosity of the skin, or the termination of the os sacrum are reasons equally insufficient for abandoning a sensitive being to the same fate. What else is it that should trace the insuperable line? Is it the faculty of reason, or perhaps the faculty of discourse? But a full-grown horse or dog is beyond comparison a more rational, as well as a more conversable animal, than an infant of a day or a week or even a month old. But suppose they were otherwise, what would it avail? The question is not, Can they reason? nor Can they talk? but, Can they suffer?” ― Jeremy Bentham, The Principles of Morals and Legislation ... See MoreSee Less

Jeremy Bentham is widely regarded as one of the earliest proponents of animal rights, and has even been hailed as "the first patron saint of animal rights". He argued that the ability to suffer, not the ability to reason, should be the benchmark, or what he called the "insuperable line". If reason alone were the criterion by which we judge who ought to have rights, human infants and adults with certain forms of disability might fall short, too. ... See MoreSee Less

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